Relief from forfeiture: Upholding testamentary wishes in assisted dying cases

A recent unreported case in England and Wales sheds light on the ability of beneficiaries to uphold a deceased’s testamentary wishes without resorting to court proceedings, even where the forfeiture rule might apply. The forfeiture rule, rooted in public policy, prevents individuals from benefiting from their own wrongdoing. This rule is triggered under section 2 of the Suicide Act 1961, which technically criminalises assisting suicide. Without relief, any benefits under the deceased’s will would pass as if the offender predeceased the deceased.

The case concerned the estate of David Peace, who chose assisted dying in Switzerland after being diagnosed with motor neurone disease. David left his flat to Tim, a friend who accompanied him on his journey. Although David’s wishes were clear, the forfeiture rule posed a risk to Tim’s inheritance. However, other beneficiaries - who would inherit under the rule - agreed to uphold Davis’s wishes and requested the executor to distribute the flat to Tim.

Deputy Master Bowles confirmed that such agreements between adult beneficiaries with capacity are binding and do not contravene public policy. Executors can safely act on these agreements without requiring court approval. This decision provides reassurance to testators that their wishes can be honoured, provided all substitute beneficiaries are adults and capable of agreeing.

This case, while unreported, offers practical guidance for avoiding costly and distressing court proceedings. It demonstrates that executors and beneficiaries can work collaboratively to ensure testamentary wishes are respected, even in sensitive circumstances involving assisted dying.

By enabling private agreements, this decision avoids unnecessary litigation, reduces costs, and allows families to navigate complex situations with dignity. It is a significant step forward in ensuring that personal representatives can act confidently in accordance with beneficiaries’ agreements.

For more information or advice, please contact Michelle Rose in our Private Client team.